ARGUMENT OF MR. ROOT 189 



which she intends to exercise reasonably, but by her sole will, with 

 all the prepossessions and prejudices of one class, the exercise of 

 the right of the other class. I say it is an entirely different situation, 

 governed by different principles, from the situation created where 

 individuals go in and commingle as they are doing all over the 

 world with all the privileges and all the opportunities of the people 

 of the coimtry into which they go. That distinction is clearly 

 pointed out and put beyond reasonable question by these very 

 statements of the men of the time who made this treaty. 



Judge Gray: Does not the proviso necessarily refer to Ameri- 

 can fishermen? 



Senator Root : Necessarily so. 



Jtjdge Gray: It is that they are permitted to enter for the four 

 purposes? 



Senator Root: Yes, precisely. They constitute a separate 

 class by themselves, differing from the other class. We have other 

 questions which really touch upon the same line as to whether, for 

 example, the customs law regarding entry, manifest, and all the 

 cumbersome machinery of a customs tariff and its enforcement with 

 reference to the vessels of the Canadians is applicable to this dif- 

 ferent and distinct class which comes in to exercise a special right 

 as a special and separate class under this treaty. 



The President: This proviso is a discriminating provision, 

 for if it has any reason for existence it must have been put in the 

 treaty as being a discriminating provision. 



Senator Root : Well, still you have the inference from the fact 

 that it is put in, and as I have intended to make clear, the fact of 

 the distinction between the situations of the two competing classes 

 makes it impossible that provisions properly governing them should 

 not be discriminating, just as many of these statutes that I have been 

 referring to, in words apparently covering everybody, operate to 

 produce a distinct discrimination against the foreign class that 

 comes in. 



The President: Under different circumstances; they are work- 

 ing in different ways? 



